Tamar Bitton

Thomas Swiston pleaded guilty to assault and assault bodily harm.

The court accepted a joint submission for 21 days (enhanced to 32) of pre-sentence custody and two years of probation.

The primary issue was the amount of restitution for the complainant's lost tooth.

The complainant sought $21,075.42, but the court, applying the "readily ascertainable" standard under s. 738(1)(b) of the Criminal Code, only ordered $1,652.40 for out-of-pocket dental expenses, rejecting claims for lost time, future care, and other undocumented losses.

The offender, a drug dealer, was convicted of assault and assault with a weapon against two female drug addicts, one of whom was his intimate partner.

The Crown sought a two-year sentence, while the defence sought a sentence of time served and probation.

The court denied pre-trial custody credit for time the offender spent serving an unrelated federal sentence.

However, the court granted 247 days of credit for the exceptionally stringent bail conditions (house arrest) the offender endured.

The offender was sentenced to 17 months' incarceration, reduced by the 247-day credit to 270 days to serve, followed by three years of probation.

R.G. was sentenced for 10 offences of sexual abuse against his daughter, spanning an eight-year period from when she was 9 or 10 until just before her 17th birthday.

The offences included incest, sexual assault with a weapon, and unlawful confinement, involving significant physical interference and violence.

The court considered aggravating factors such as the egregious breach of trust, the victim's young age, the duration and frequency of abuse, and the profound impact on the victim.

Mitigating factors included the offender's steady employment history and family support, as well as time spent in pre-sentence custody and under restrictive bail conditions, including hardships due to the COVID-19 pandemic.

Applying principles from R. v. Friesen, the court imposed a total sentence of 10 years, with a credit of 2 years for pre-sentence custody and stringent bail conditions, resulting in 8 years of imprisonment yet to be served.

Ancillary orders included a communication prohibition, DNA order, lifetime weapons prohibition, and Sex Offender Information Registration Act compliance.

The appellant sought leave to appeal his sentence for dangerous operation, resisting arrest, breach of probation, and breach of a release order.

The Crown conceded that the sentencing judge erred by imposing a sentence exceeding the joint submission without inviting further submissions.

The Court of Appeal granted leave to appeal and to admit fresh evidence demonstrating the appellant's significant rehabilitation efforts.

The sentence was reduced to time served, while the 12-month driving prohibition was upheld as fit.

The applicant brought a mid-trial application seeking to prohibit the complainant from participating in a s. 278.93/4 hearing and to prevent disclosure of application materials to the complainant, relying on the recent decision in R. v. Reddick which found those provisions unconstitutional.

The court dismissed the application, finding that the principles of stare decisis did not apply because Reddick was decided in the context of a pre-trial application, whereas this was a mid-trial application.

Furthermore, the court held that even if stare decisis applied, the decision in Reddick was plainly wrong as it failed to fully consider the constitutional issues in the context of a mid-trial application and misinterpreted the legislation.

The applicant, charged with sexual assault and other offences, brought a motion seeking to prohibit the complainant from participating in a s. 276/278 admissibility hearing regarding WhatsApp messages.

The applicant relied on a recent Superior Court decision (R. v. Reddick) that found the participation provisions unconstitutional, arguing that under the principles of stare decisis, the court should follow Reddick without a formal constitutional challenge.

The Crown argued that a Notice of Constitutional Question was required under s. 109 of the Courts of Justice Act.

The court held that relying on a previous declaration of unconstitutionality still puts the constitutional validity of the legislation in question, thereby triggering the mandatory notice requirement under s. 109.

However, the court ruled that notice did not need to be served on the complainant.

The accused, charged with sexual assault and other offences against his wife, sought a ruling on whether an application to adduce evidence of the complainant's prior sexual activity (WhatsApp messages) under ss. 276 and 278.92 of the Criminal Code could be brought mid-trial rather than pre-trial.

The court reviewed the legislative history, the purpose of the rape shield provisions, and the accused's Charter rights to make full answer and defence and against self-incrimination.

The court concluded that requiring a pre-trial application would force premature disclosure of impeachment material, potentially tainting the complainant's evidence and violating the accused's fair trial rights.

The court ruled that the application could be brought mid-trial.

The accused, charged with sexual assault and other offences against his wife, sought to adduce WhatsApp messages exchanged between them.

He brought an application for a ruling that the messages were not 'records' under s. 278.1 of the Criminal Code and thus not subject to the admissibility regime in s. 278.92.

The court first ruled that the Crown was not entitled to review the messages at the threshold stage to argue whether they constituted a record.

After reviewing the messages, the court held that the complainant did not have an objectively reasonable expectation of privacy in the messages, as they were voluntarily exchanged with the accused and were innocuous in nature.

Therefore, the messages were not 'records' and the accused was not required to bring an application under s. 278.93 before using them at trial.

During a trial for attempted robbery, the accused brought an application to adduce third party suspect evidence relating to a separate carjacking incident that occurred months later in the same neighbourhood.

The defence argued the accused was an innocent bystander hit by the victims' fleeing vehicle and that the true perpetrators were the suspects from the other incident.

The court dismissed the application, finding no sufficient nexus or air of reality connecting the two incidents, as the descriptions and circumstances were generic and not significantly similar.

The applicant, charged with attempted robbery, brought a pre-trial application challenging the constitutionality of Bill C-75 amendments to the Criminal Code which eliminated peremptory challenges and altered the challenge for cause procedure.

The applicant argued these changes infringed sections 7, 11(d), and 11(f) of the Charter.

The court dismissed the application, finding that the new procedures, including expanded judicial powers to stand aside jurors, adequately safeguard the right to an independent and impartial tribunal.

The court also held that the amendments are procedural in nature and therefore apply retrospectively.